•214 24 Sup. Ct. Rep. 780; Hyde v. Shine, 199 U. S.*62, 83, 50 L. ed. 90, 97, 25 Sup. Ct. Rep. 760; Whitney v. Dick, 202 U. S. 132, 136, 50 L. ed. 963, 964, 26 Sup. Ct. Rep. 584; Kaizo v. Henry, 211 U. S. 146, 148, 53 L. ed. 125, 126, 29 Sup. Ct. Rep. 41. This rule has recently been applied in a case where it was contended in a habeas corpus proceeding that the record should be examined to determine whether there was any testimony to support the accusation. And this court, affirming the judgment which discharged the writ, said by Mr. Justice Day: "The contention is that, in the respects pointed out, the testimony wholly fails to support the charge. The attack is thus not upon the jurisdiction and authority of the court to proceed to investigate and determine the truth of the charge, but upon the sufficiency of the evidence to show the guilt of the accused. This has never been held to be within the province of a writ of habeas corpus. Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions." Harlan v. McGourin, 218 U. S. 448, ante, 47, 31 Sup. Ct. Rep. 47. But it is said that § 1177 must be read in connection with § 1176, which in turn has reference to the act of the legislative assembly of the District of Columbia, approved August 23, 1871. The argument in substance is that these statutes furnish a controlling definition of the words "giftenterprise business," as used in § 1177, and that if this be so, the section must be held unconstitutional. The act passed in 1871 by the legislative assembly of the District of Columbia, to which reference is made, was entitled, "An Act Imposing a License on Trades, Business, and Professions Practised or Carried on in the District of Columbia." It provided as follows: "The proprietors of gift enterprises shall pay $1,000 annually. Every person who shall sell or offer for sale any real estate or article of merchandise of any description whatever, or any ticket of admission to any exhibition or performance, or other place of amusement, with the promise, expressed or implied, to give or bestow, or in any manner hold out the promise of gift or bestowal, of any article or thing, for and in consideration of the purchase by any person of any other article or thing, whether the object shall be for individual gain or for the benefit of any any purpose whatever, shall be regarded as a gift enterprise: Provided, That no such proprietor, in consequence of being thus taxed, shall be exempt from paying any other taxes imposed by law, and the license herein* required shall be in addition thereto." Laws of the District of Columbia, 1871-72, Part 2, pages 96, 97. We come, then, to the grounds upon which the jurisdiction of the police court is assailed. It is urged that the prohibi-institution, of whatever character, or for tion contained in the statute under which the information was brought is unconstitutional, in that it violates the 5th Amendment of the Constitution of the United States by depriving the petitioner of liberty and property without due process of law. The information rested on § 1177 of the Revised Statutes relating to the District of Columbia, which makes it a crime "in any Congress, by act of February 17, 1873, manner" to engage "in any gift-enterprise chap. 148, 17 Stat. at L. 464, disapproved business" in the District. If this section and repealed this legislation, and enacted be read alone, no basis appears for the ar- the prohibitions which later were incorporagument of invalidity. It cannot be said ed in § 1176 and 1177 of the Revised that the words "gift-enterprise business" Statutes relating to the District of Columare so uncertain as to make the prohibition | bia, as follows: nugatory, or that they necessarily include conduct which lies outside the range of legislative interference in the exercise of the police power. While these words are general, they may be regarded as embracing a class of transactions which the legislature is competent to condemn. Thus, a "gift enterprise" has been defined to be "a scheme for the division or distribution of certain articles of property, to be determined by chance, amongst those who have taken shares in the scheme." Bouvier's Law Dict. (Rawle's Rev.) p. 884; Black's Law Dict. p. 539; Anderson's Law Dict. p. 488. See also Lohman v. State, 81 Ind. 15, 17; Winston v. Beeson, 135 N. C. 271, 279, 65 L.R.A. 167, 47 S. E. 457; Randle v. State, 42 Tex. 580 | "Sec. 1176. So much of the act of the legislative assembly of the District of Columbia entitled, 'An Act Imposing a License on Trades, Business, and Professions Practised or carried on in the District of Columbia,' approved August twenty-third, eighteen hundred and seventy-one, as authorizes gift enterprises therein, and licenses to be issued therefor, is disapproved and repealed, and hereafter it shall be unlawful for any person or persons to engage in said business in any manner as defined in said act or otherwise. "Sec. 1177. Every person who shall in any manner engage in any gift-enterprise business in the District shall, on conviction thereof in the police court, on information filed for and on behalf of the District, pay *215 912. *217 a fine not exceeding one thousand dollars, | the well-established rule. Given a valid or be imprisoned in the District jail not less enactment, the question (assuming it to be than one nor more than six months, or both, one demanding judicial examination) whethin the discretion of the court." er a particular case falls within the prohibition is for the determination of the court to which has been confided jurisdiction over the class of offenses to which the statute relates. It will be observed that while § 1176 refers to the District act of 1871, and to "gift enterprises" as therein described, it does not treat that description as exclusive. It assumes that there are other gift enter- As said by Chief Justice Marshall in Ex prises than those defined in the act of 1871. parte Watkins, 3 Pet. 193, on page 203, 7 L. It denounces the former not less than the ed. 650, 653: "The judgment of such a trilatter. It does not limit its provisions to bunal has all the obligations which the judgthe transactions which previously had been ment of any tribunal can have. To deterlicensed under the act of 1871, but expressly mine whether the offense charged in the inincludes gift enterprises conducted “in any | dictment be legally punishable or not is manner, as defined in said act or otherwise." among the most unquestionable of its power The purpose of the provision of §1176 was and duties. The decision of this question to disapprove and repeal the former author- is the exercise of jurisdiction, whether the ization, but not to establish an exclusive judgment be for or against the prisoner. definition based upon it. The language of The judgment is equally binding in the one § 1176 conclusively negatives such an in- case and in the other; and must remain in tention. It follows that § 1177 is not con- full force unless reversed regularly by a trolled by the definition to be found in the superior court capable of reversing it." act of 1871. Even if it were assumed that And in Ex parte Parks, 93 U. S. 18, on page the condemnation contained in § 1176 of the 20, 23 L. ed. 787, 788, the court said: transactions particularly described in the "Whether an act charged in an indictment act of 1871 was too sweeping, and that is or is not a crime by the law which the Congress went beyond its power in giving court administers (in this case the statute the prohibition so wide a scope, this would law of the United States) is a question not affect the provision of § 1177, relating, which has to be met at almost every stage as we have seen, to a recognized category of criminal proceedings; on motions to of offenses for which it was within the quash the indictment, on demurrers, on power of Congress to prescribe punishment. motions to arrest judgment, etc. The court Whether it be read alone or in the light of may err, but it has jurisdiction of the its context, § 1177 cannot be adjudged in- question." valid. And it is upon this section that the information in question was based. We have, then, a statute with valid operation. This being established, there can be no question that it conferred upon the police court, by its express terms, jurisdiction of the offense, and that court tried and convicted the petitioner. But it is insisted that the facts do not support the conviction. The argument ignores the nature of this proceeding, unless it be meant that no colorable question was presented; that on the agreed statement of facts, and viewing the statute as prohibiting transactions involving the element of chance, there was such an obvious and palpable want of criminality that the judicial judgment cannot be said to have been invoked, and that therefore the court had no jurisdiction to determine whether or not the statute had been violated. Such a contention is without merit. It is by no means manifest that the scheme or enterprise in which the petitioner was en. gaged lay outside the range of judicial consideration under the statute. On the contrary, the agreed statement of facts presented questions requiring the exercise of judicial judgment, and the case falls within In hearing this application, this court does not sit to review the correctness of the conclusion of the police court as to the violation of the statute by the petitioner, or of the decision of the court of appeals of the District as to the sufficiency of the information filed against him. The question here is not one of guilt or innocence, but simply whether the court below had jurisdiction to try the issues. And as we find that the statute conferred that jurisdiction, the application for a writ of habeas corpus must be denied. Rule discharged and petition dismissed. (219 U. S. 219.) V. STATE OF ALABAMA. CONSTITUTIONAL LAW (§ 83*)-INVOLUN- So far as the refusal without just cause to perform the labor called for in a written contract of employment under which the employee has obtained money which was not refunded, or property which was not paid for, is made prima facie evidence of an in For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 31 d. *227 tent to defraud by Ala. Code 1896, § 4730, | any person who, with intent to injure or deas amended by Gen. Acts 1903, p. 345, and Gen. Acts 1907, p. 636, and therefore punishable as a criminal offense, such legislation offends against the prohibition of the 13th Amendment to the Federal Constitution against involuntary servitude, except as punishment for crime, and against the provisions forbidding peonage, found in U. S. Rev. Stat. §§ 1990, 5526, U. S. Comp. Stat. 1901, pp. 1266, 3715, enacted to secure the enforcement of such Amendment,-especially since, under the local practice, the accused may not, for the purpose of rebutting the statutory presumption, testify as to his uncommunicated motives, purposes, or in tentions. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 150-151; Dec. Dig. § 83.*] [No. 300.] fraud his employer, entered into a written "Any person who, with intent to injure or defraud his* employer, enters into a conArgued October 20, 21, 1910. Decided Jan- tract in writing for the performance of any I uary 3, 1911. N ERROR to the Supreme Court of the State of Alabama to review a judgment which affirmed a judgment of the Montgomery City Court, in that state, convicting an employee of a breach of a contract of employment, with intent to injure or defraud the employer. Reversed and remanded for further proceedings. See same case below, 161 Ala. 75, 49 So. 886. The facts are stated in the opinion. Messrs. Edward S. Watts, Fred S. Ball, and Daniel W. Troy for plaintiff in error. Messrs. Alexander M. Garber and Thomas W. Martin for defendant in error. Assistant Attorney General Harr, with Attorney General Wickersham, as amici curia. * Mr. Justice Hughes delivered the opinion of the court: This is a writ of error to review a judgment of the supreme court of the state of Alabama, affirming a judgment of conviction in the Montgomery city court. The statute upon which the conviction was based is as sailed as in violation of the 14th Amendment of the Constitution of the United States upon the ground that it deprived the plaintiff in error of his liberty without due process of law and denied him the equal protection of the laws, and also of the 13th Amendment, and of the act of Congress providing for the enforcement of that Amendment, in that the effect of the statute is to enforce involuntary servitude by compelling personal service in liquidation of a debt. The statute in question is § 4730 of the Code of Alabama of 1896, as amended in 1903 and 1907. The section of the Code as it stood before the amendments provided that act of service, and thereby obtains money or other personal property from such employer, and with like intent, and without just cause, and without refunding such money, or paying for such property, refuses or fails to perform such act or service, must on conviction be punished by a fine in double the damage suffered by the injured party, but not more than $300, one half of said fine to go to the county and one half to the party injured; and any person who, with intent to injure or defraud his landlord, enters into any contract in writing for the rent of land, and thereby obtains any money or other personal property from such landlord, and with like intent, without just cause, and without refunding such money, or paying for such property, refuses or fails to cultivate such land, or to comply with his contract relative thereto, must on conviction be punished by fine in double the damage suffered by the injured party, but not more than $300, one half of said fine to go to the county and one half to the party injured. And the refusal or failure of any person, who enters into such contract, to perform such act or service, or to cultivate such land, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure his employer or landlord or defraud him. That all laws and parts of laws in conflict with the provisions hereof be and the same are hereby repealed." There is also a rule of evidence enforced by the courts of Alabama which must be regarded as having the same effect as if read into the statute itself, that the accused, for the purpose of rebutting the statutory presumption, shall not be allowed to testify "as to his uncommunicated motives, purpose, or intention." 161 Ala. 77, 78, 49 So. 886. For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes *228 +229 Bailey, the plaintiff in error, was committed for detention on the charge of obtaining $15 under a contract in writing with intent to injure or defraud his employer. He sued out a writ of habeas corpus, challenging the validity of the statute. His discharge was refused, and the supreme court of the state affirmed the order, holding the statute to be constitutional. 158 Ala. 18, 48 So. 498. On writ of error from this court it was held that the case was brought here prematurely, and the questions now presented were expressly reserved. Bailey v. Alabama, 211 U. S. 452, 53 L. ed. 278, 29 Sup. Ct. Rep. 141. Having failed to obtain his release on habeas corpus, Bailey was indicted on the following charge: "The grand jury of said county charge that before the finding of this indictment Alonzo Bailey, with intent to injure or defraud his employer, the Riverside Company, a corporation, entered into a written contract to perform labor or services for the Riverside Company, a corporation, and obtained thereby the sum of $15 from the said the Riverside Company, and afterwards with like intent, and without just cause, failed or refused to perform such labor or services, or to refund such money, against the peace and dignity of the state of Alabama.' Motion to quash and a demurrer to the indictment were overruled. Upon the trial the following facts appeared: On December 26, 1907, Bailey entered into a writtén contract with the Riverside Company, which provided: "That I, Lonzo Bailey, for and in consideration of the sum of $15 in money, this day in hand paid to me by said the Riverside Company, the receipt whereof I do hereby acknowledge, I, the said Lonzo Bailey, do hereby consent, contract, and agree to work and labor for the said Riverside Company as a farm hand on their Scott's Bend place in Montgomery county, Alabama, from the 30 day of December, 1907, to the 30 day of December, 1908, at and for the sum of $12 per month. 'And the said Lonzo Bailey agrees to render respectful and faithful service to the said the Riverside Company, and to perform diligently and actively all work pertaining to such employment, in accordance with the instructions of the said the Riverside Company or agent. "And the said the Riverside Company, in consideration of the agreement above mentioned of the said Lonzo Bailey, hereby employs the said Lonzo Bailey as such farm hand for the time above set out, and agrees to pay the said Lonzo Bailey the sum of $10.75 per month." The manager of the employing company testified that at the time of entering into this contract there were present only the witness and Bailey, and that the latter then obtained from the company the sum of $15; that Bailey worked under the contract throughout the month of January and for three or four days in February, 1908, and then, "without just cause, and without refunding the money, ceased to work for said Riverside Company, and has not since that time performed any service for said com. pany in accordance with or under said contract, and has refused and failed to perform any further service thereunder, and has, without just cause, refused and failed to refund said $15." He also testified, in response to a question from the attorney for the defendant, and against the objection of the state, that Bailey was a negro. No other evidence was introduced. The court, after defining the crime in the language of the statute, charged the jury, in accordance with its terms, as follows: "And the refusal of any person who enters into such contract to perform such act or service, or refund such money, or pay for such property, without just cause, shall be prima facie evidence of the intent to injure his employer, or to defraud him." Bailey excepted to these instructions, and requested the court to instruct the jury that the statute and the* provision creating the presumption were invalid, and further that "the refusal or failure of the defendant to perform the service alleged in the indictment, or to refund the money obtained from the Riverside Company under the contract between it and the defndant, without cause, does not of itself make out a prima facie case of the defendant's intent to injure or defraud said Riverside Company." The court refused these instructions and Bailey took exception. The jury found the accused guilty, fixed the damages sustained by the injured party at $15, and assessed a fine of $30. Thereupon Bailey was sentenced by the court to pay the fine of $30 and the costs, and in deafult thereof to hard labor "for twenty days in lieu of said fine, and one hundred and sixteen days on account of said costs." On appeal to the supreme court of the state, the constitutionality of the statute was again upheld and the judgment affirmed. 161 Ala. 75, 49 So. 886. We at once dismiss from consideration the fact that the plaintiff in error is a black man. While the action of a state, through its officers charged with the admin. istration of a law fair in appearance, may be of such a character as to constitute a denial of the equal protection of the laws *231 *232 (Yick Wo v. Hopkins, 118 U. S. 356, 373, 30 | employer, and unless his refusal to perL. ed. 220, 227, 6 Sup. Ct. Rep. 1064), such | form *was with like intent and without just a conclusion is here neither required nor justified. The statute, on its face, makes no racial discrimination, and the record fails to show its existence in fact. No question of a sectional character is presented, and we may view the legislation in the same manner as if it had been enacted in New York or in Idaho. Opportunities for coercion and oppression, in varying circumstances, exist in all parts of the Union, and the citizens of all the states are interested in the maintenance of the constitutional guaranties, the consideration of which is here involved. Prior to the amendment of the year 1903, enlarged in 1907, the statute did not make the mere breach of the contract, under which the employee had obtained from his employer money which was not refunded or property which was not paid for, a crime. The essential ingredient of the offense was the intent of the accused to injure or defraud. To justify conviction, it was necessary that this intent should be etasblished by competent evidence, aided only by such inferences as might logically be derived from the facts proved, and should not be the subject of mere surmise or arbitrary assumption. This was the construction which the supreme court of Alabama placed upon the statute, as it then stood, in Ex parte Riley, 94 Ala. 82, 10 So. 528. In that case the court said (id. 83, 84): "The ingredients of this statutory of fense are: (1) A contract in writing by the accused for the performance of any act or service; (2) an intent on the part of the accused, when he entered into the contract, to injure or defraud his employer; (3) the obtaining by the accused of money or other personal property from such employer by means of such contract entered into with such intent; and (4) the refusal by the accused, with like intent, and without just cause, and without refunding such money, or paying for such property, to perform such act or service. This statute by no means provides that a person who has entered into a written contract for the performance of services, under which he has obtained money or other personal property, is punishable as if he had stolen such money or other personal property, upon his refusal to perform the contract, without refunding the money or paying for the property. A mere breach of a contract is not by the statute made a crime. The criminal feature of the transaction is wanting unless the accused entered into the contract with intent to injure or defraud his cause. That there was an intent to injure or defraud the employer, both when the contract was entered into and when the accused refused performance, are facts which must be shown by the evidence. As the intent is the design, purpose, resolve, or determination in the mind of the accused, it can rarely be proved by direct evidence, but must be ascertained by means of inferences from the facts and circumstances developed by the proof. Carlisle v. State, 76 Ala. 75; Mack v. State, 63 Ala. 138. In the absence, however, of evidence from which such inferences may be drawn, the jury are not justified in indulging in mere unsupported conjectures, speculations, or suspicions as to intentions which were not disclosed by any visible or tangible act, expression, or circumstance. See also Green v. State, 68 Ala. 539." Dorsey v. State, 111 Ala. 40, 20 So. 629; McIntosh v. State, 117 Ala. 128, 23 So. 668. We pass, then, to the consideration of the amendment, through the operation of which under the charge of the trial court this conviction was obtained. No longer was it necessary for the prosecution to comply with the rule of the Riley Case (supra) in order to establish the intent to injure or defraud which, as the court said, constituted the gist of the offense. It was "the difficulty in proving the intent, made patent by that decision," which "suggested the amendment of 1903." Bailey v. State, 158 Ala. p. 25, 48 So. 498. By this amendment it was provided, in substance, that the refusal or failure to perfom the service contracted for, or to refund the money obtained, without just cause, should be prima facie evidence of the intent to injure or defraud. But the refusal or failure to perform the service, without just cause, constitutes the breach of the contract. The justice of the grounds of refusal or failure must, of course, be determined by the contractual obligation* assumed. Whatever the reason for leaving the service, if, judged by the terms of the contract, it is insufficient in law, it is not "just cause." The money received and repayable, nothing more being shown, constitutes a mere debt. The asserted difficulty of proving the intent to injure or defraud is thus made the occasion for dispensing with such proof, so far as the prima And the mere facie case is concerned. breach of a contract for personal service, coupled with the mere failure to pay a debt which was to be liquidated in the course of such service, is made sufficient to warrant a conviction. It is no answer to say that the jury must find, and here found, that a fraudulent #234 •233 |